Law and Politics Commons^™

The General Assembly's Structural Conflicts Of Interest, Waldo Jaquith

Richmond Journal of Law and the Public Interest

Virginia is not a state saddled with a reputation of ethically challenged legislators, but our part-time citizen legislature is structurally conducive to conflicts of interest. This reality was brought to the forefront in November 2009 when Delegate Phillip Hamilton resigned from the House of Delegates following revelations that he directed state appropriations into his own pocket. There is little doubt that the majority of legislators are scrupulous in their efforts to avoid such conflicts, but they must navigate treacherous waters to do so. Significant modifications to the structure and ethical standards of the General Assembly are necessary to correct this …

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

Scholarly Works

No abstract provided.

Ethics In Virginia: Reforming Ethics And Conflict Of Interest Laws In The 2010 Virginia General Assembly, Christopher E. Piper

Richmond Public Interest Law Review

This article will review the process by which an ethics complaint was handled in 2009 as well as the laws that passed the 2010 General Assembly. It will also examine criticisms of ethics laws in Virginia and throughout the country. Finally, this article concludes with a discussion of the current criticisms of ethics laws in Virginia and across the country.

On Respect, Authority & Neutrality: A Response, Joseph Raz

Faculty Scholarship

I owe a great debt to Professors Wall, Darwall, and Green for their willingness to challenge, develop, and question some of my publications, which forced me to confront a few of the shortcomings in my views and, I hope, to clarify and improve some of them. Given the diversity of the topics, I respond to each separately. I aimed to avoid minor points and to write only on matters which affect the cogency of my views or theirs on important issues.1 For that reason, as well as for reasons of space, not all the issues they raise are dealt …

A Critical Consideration Of Executive Orders: Glimmerings Of Autopoiesis In The Executive Role, John C. Duncan Jr

Journal Publications

The United States Constitution is a parsimonious document, meant to retain the dynamic processes of the three branches of government within their respective spheres and overarching principles, beyond which it offers the latitude necessary for the developing nation to adapt to future contingencies. The Congress and the President are the governing institutions of two of those branches, to which agility is essential as a matter of survival. The most agile tool that the President has is the executive order. There is no statutory authority for the federal executive order or any other source that describes its legal effect, as such, …

What The Financial Services Industry Puts Together Let No Person Put Asunder: How The Gramm-Leach-Bliley Act Contributed To The 2008 - 2009 American Capital Markets Crisis, Joseph Karl Grant

Journal Publications

The current subprime financial crisis has shaped up to be one of the most dramatic and impactful events in the past few decades. No one particular factor fully accounts for why the American economy suffered setbacks unseen since the Great Depression of the 1930s. Some of the roots of the current financial crisis started taking hold in 1999 when Congress passed the Financial Services Modernization Act, also known as the Gramm-Leach-Bliley Act. Gramm-Leach-Bliley brought about sweeping deregulation to the financial services industry. In essence, Gramm -Leach-Bliley swept away almost six decades of financial services regulation precipitated by the Great Depression …

Legislating In The Dark: How Congress Regulates Tax-Exempt Organizations In Ignorance, John F. Coverdale

University of Richmond Law Review

No abstract provided.

Pregnant Man: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth Emens, Berta E. Hernandez-Truyol,, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Economically Benevolent Dictators: Lessons For Developing Democracies, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The post-war experience of developing countries leads to two depressing conclusions: only a small number of countries have successfully developed; and development theory has not produced development. In this article we examine one critical fact that might provide insights into the development conundrum: Some autocratic regimes have fundamentally transformed their economies, despite serious deficiencies along a range of other dimensions. Our aim is to understand how growth came about in these regimes, and whether emerging democracies might learn something important from these experiences.

Our thesis is that in these economically successful countries, the authoritarian regime managed a critical juncture in …

The Ethics Of Melancholy Citizenship, Robert L. Tsai

Faculty Scholarship

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward political renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how …

Ethics In Virginia: Reforming Ethics And Conflict Of Interest Laws In The 2010 Virginia General Assembly, Christopher E. Piper

Richmond Journal of Law and the Public Interest

This article will review the process by which an ethics complaint was handled in 2009 as well as the laws that passed the 2010 General Assembly. It will also examine criticisms of ethics laws in Virginia and throughout the country. Finally, this article concludes with a discussion of the current criticisms of ethics laws in Virginia and across the country.

African American Disproportionality In School Discipline: The Divide Between Best Evidence And Legal Remedy, Russell J. Skiba, Suzanne E. Eckes, Kevin Brown

NYLS Law Review

No abstract provided.

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

Articles

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …

Sincerity And Reason-Giving: When May Legal Decision Makers Lie, Mathilde Cohen

Faculty Articles and Papers

Public "reason giving" is an essential duty of democracies, said to promote better public decision-making by keeping the government's discretionary powers in check. However, this aim may be compromised if decision-makers cite insincere and misleading justifications as a means of preventing accountability. This Article contributes to rethinking sincerity in legal decision-making by asking both a normative and a descriptive question. The normative question is whether and to what extent should public institutions disclose the reasons for their decisions. The practical question is whether and how the fact that decision-makers have failed to fully disclose their reasons can be established. The …

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Agency Hygiene, Nicholas Bagley

Articles

Prof. Bagley notes that reshaping captured agencies using the structural reforms suggested by Prof. Barkow may be politically infeasible and offers an alternative solution for eliminating interest-group capture. First, he suggests establishing a body within the Executive Branch that proactively investigates and documents capture dynamics. Second, he suggests creating legislative mechanisms that will encourage Congressional action on the body’s recommendations, and perhaps, more provocatively, requiring the Executive Branch to enact any such recommendations in the absence of Congress’s formal objection.

The Dilemma Of Direct Democracy, Craig M. Burnett, Elizabeth Garrett, Mathew D. Mccubbins

Faculty Scholarship

The dilemma of direct democracy is that voters may not always be able to make welfare- improving decisions. Lupia’s seminal work has led us to believe that voters can substitute voting cues for substantive policy knowledge. Lupia, however, emphasized that cues were valuable under certain conditions and not others. In what follows, we present three main findings regarding voters and what they know about California’s Proposition 7. First, much like Lupia reported, we show voters who are able to recall endorsements for or against a ballot measure vote similarly to people who recall certain basic facts about the initiative. We …

Delphic Dictum: How Has The Icj Contributed To The Global Rule Of Law By Its Ruling On Kovoso Kosovo In The Icj - The Case, Robert Howse, Ruti Teitel

Articles & Chapters

No abstract provided.

Negotiating Implementation Of A Peace Agreement: Lessons Learned From Five Years At The Negotiating Table, Amos N. Guiora

Cardozo Journal of Conflict Resolution

For five years (1994-1999), I directly negotiated on-theground implementation of the Oslo Peace Process in the Gaza Strip. In my capacity as the Judge Advocate General's ("JAG") Corps Legal Advisor to the Israel Defense Forces ("IDF") Commander, Gaza Strip (1994-1997), I had primary responsibility for both interpretation and negotiation, first for the Gaza-Jericho Agreement and subsequently for the Interim Agreement as it applied to the Gaza Strip.

Moral Foundation Theory And The Law, Colin Prince

Seattle University Law Review

Moral foundation theory argues that there are five basic moral foundations: (1) harm/care, (2) fairness/reciprocity, (3) ingroup/loyalty, (4) authority/respect, and (5) purity/sanctity. These five foundations comprise the building blocks of morality, regardless of the culture. In other words, while every society constructs its own morality, it is the varying weights that each society allots to these five universal foundations that create the variety. Haidt likens moral foundation theory to an “audio equalizer,” with each culture adjusting the sliders differently. The researchers, however, were not content to simply categorize moral foundations—they have tied the foundations to political leanings. And it is …

Gerald Ford, The Nixon Pardon, And The Rise Of The Right , Laura Kalman

Cleveland State Law Review

Perhaps more than the 1960s, the early 1970s marked the high water mark of the liberal consensus. Roe v. Wade, which grounded the right to abortion in the right to privacy, represented the apex of rights-based liberalism and perpetuated the division between public and private, a crucial facet to liberalism. As President, Nixon often governed liberally even though he talked conservatively, and thus many conservatives regarded him as a traitor. The rise of the modern Republican Party and the right was highly contingent: When Nixon resigned, both the Republican Party and conservatives seemed even more divided, endangered, and mired in …

Davis V. Federal Election Commission: A Further Step Towards Campaign Finance Deregulation And The Preservation Of The Millionaires' Club, Grant Fevurly

University of Colorado Law Review

In the middle of the 2008 election cycle, the United States Supreme Court altered the permissible limits of campaign finance regulation by striking down the "Millionaire's Amendment" in Davis v. Federal Election Commission. The struck provision attempted to equalize the resource differential between self-financing and non-self-financing candidates for electoral office by temporarily increasing the contribution limits for the non-self-financing candidates when those candidates who self-financed crossed a threshold amount of personal expenditures. Once the disparity between the two candidates equalized, the normal regulatory regime resumed effect. While important for its own immediate implications to a number of public financing schemes …

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

The Most Popular Tool: Tax Increment Financing And The Political Economy Of Local Government, Richard Briffault

Faculty Scholarship

Tax increment financing (TIF) is the most widely used local government program for financing economic development in the United States, but the proliferation of TIF is puzzling. TIF was originally created to support urban renewal programs and was narrowly focused on addressing urban blight, yet now it is used in areas that are plainly unblighted. TIF brings in no outside money and provides no new revenue-raising authority. There is little clear evidence that TIF has done much to help the municipalities that use it, and it is also a source of intergovernmental tension and a site of conflict over the …

Corporate Political Speech: Who Decides, Lucian A. Bebchuk, Robert J. Jackson Jr.

Faculty Scholarship

The Supreme Court spoke clearly this Term on the issue of corporate political speech, concluding in Citizens United v. FEC' that the First Amendment protects corporations' freedom to spend corporate funds on indirect support of political candidates. 2 Constitutional law scholars will long debate the wisdom of that holding, as do the authors of the two other Comments in this issue.3 In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus instead on an important question left unanswered by Citizens United: who should have the …

Introduction To The Symposium: The Politics Of Identity After Identity Politics, Adrienne D. Davis

Scholarship@WashULaw

The Essays in this volume seek to shed some light on the politics of identity after the 2008 Presidential election in which identity politics dominated. To explore how 2008 and its aftermath have shifted both academic and political debates, Professor Adrienne Davis invited scholars from a variety of disciplines who embrace diverse methodologies—political theory; cultural studies; history; and law. These authors explore identity politics as a field of academic inquiry; a cultural discourse; a legal claim; a negotiation of institutions and power; and a predicate for political alliances. Collectively, the Articles both develop new frameworks and intervene in old ones …

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

Publications

In Nudge, Cass Sunstein and Richard Thaler describe how public and private institutions can improve on individual choices by nudging individuals into making selections that are right for them. Rejecting the Econ-101 caricature of the rational utility maximizer as inaccurate, Sunstein and Thaler apply the insights of behavioral economics to show how institutions can improve the delivery of services. Moving beyond attempts to remedy individual cognitive errors, Sunstein and Thaler also argue for "libertarian paternalism" - which they herald as the "Third Way." This Review assesses their claims critically, finding their development of "nudge" and "choice architecture" to be …

Behavioral Decision Theory And Implications For The Supreme Court’S Campaign Finance Jurisprudence, Molly J. Walker Wilson

All Faculty Scholarship

America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as “speech” and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or …

Too Much Of A Good Thing: Campaign Speech After Citizens United, Molly J. Walker Wilson

All Faculty Scholarship

In January 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce and the portion of McConnell v. Federal Election Commission that restricted independent corporate expenditures, as codified in section 203 of the Bipartisan Campaign Reform Act. Specifically, Citizens United invalidated laws forbidding corporations and unions from using general treasury funds for “electioneering communication,” political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election. The effect of Citizens United was to protect the right of corporations, no less than individual American citizens, to fund …